Scalia gives roadmap to marriage equality

Justice Antonin Scalia knows how to write. And seldom has his writing been more colorful, scathing or cogent than his dissent in United States v. Windsor, where he lays out why the majority opinion striking down the Defense of Marriage Act will lead to a constitutional right to same-sex marriage despite the Court’s failure to do so in the Prop. 8 case.

Not that there was much doubt before that the 37 state bans are next at issue, despite the odd disclaimer at the end of Justice Anthony Kennedy’s opinion, saying the ruling is “confined” to gay and lesbian marriages in states that conduct them.

“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is,” Scalia wrote.

Nor does he give much credent to Chief Justice John Roberts’ separate dissent, in which Roberts wants to “highlight the limits of the majority’s holding and reasoning today, lest its opinion be taken to resolve…a question that all agree, and the Court explicitly acknowledges, is not at issue,” namely a constitutional right to marry someone of the same gender.

Scalia lifts sections of Windsor to show how easily the word “DOMA” is cut and replaced with “state law.”

Scalia said the full meaning of Windsor “is beyond mistaking”:

“…the real rationale of today’s opinion, whatever disappearing trail of legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare…desire to harm’ couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex marital status.”

Recall it was Scalia’s dissent in Lawrence v. Texas, decriminalizing homosexuality, that predicted the ruling would lead to legalization of same-sex marriage. Windsor came 10 years to the day after Lawrence. Chad Griffin, founder of the American Foundation for Equal Rights and leader of the attack on California’s Prop. 8 marriage ban, said it took five years to topple Prop 8. He laid down a goal of five years to topple every state marriage ban in the country.